Delhi High Court

Lala Sri Kishan Das Gupta ... vs Ved Prakash Gupta & Ors. on 1 December, 2010

Author: Indermeet Kaur

R-128
*IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Date of Judgment : 1.12.2010

+                        R.S.A.No.19/2003

LALA SRI KISHAN DAS GUPTA (DECEASED)
THROUGH L.Rs.                          ...........Appellant
                  Through: Mr.J.P.Gupta, Advocate.

                   Versus

VED PRAKASH GUPTA & ORS.                         ..........Respondents

Through: None.

CORAM:

HON'BLE MS. JUSTICE INDERMEET KAUR

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest?

Yes

INDERMEET KAUR, J.(Oral)

1. This appeal has impugned the judgment and decree dated

1.10.2002 which has endorsed the finding of the trial judge dated

9.7.1999 whereby the suit of the plaintiff i.e. of Shri Krishan Das

Gupta seeking recovery of arrears of rent from Ved Prakash Gupta

had been dismissed.

2. Plaintiff Shri Krishan Das Gupta had filed a suit for recovery

of arrears of rent against defendant no.1 Ved Prakash Gupta. His

contention was that Ved Prakash Gupta is the tenant of the plaintiff

in respect of shop bearing no.3767, Chawri Bazar, Delhi at a

monthly revised rent of Rs.41/- per month. The defendant is in

arrears of rent up to 30.12.1992; he is liable to repay this amount

along with interest at the rate of 15% per annum; suit for recovery

of Rs.2603.87p. was filed.

3. Contention of defendant was that he is not the sole legal heir

of his deceased father Baldeo Pershad who was the erstwhile

tenant. After the death of Baldeo Pershad, Ved Prakash Gupta

along with other legal heirs of their deceased father had become

joint tenants in the suit property. He alone was not liable to pay

the rent.

4. Trial judge had framed four issues. Issue no.1 and Issue no.2

are relevant; they inter alia read as follows:

i. Whether the suit is bad for non-joinder of necessary parties in view of the preliminary objection No.1 of W.S. of defendant? OPD.

ii. Whether the suit is barred by resjudicata in view of preliminary objection No.2 of the W.S.? OPD.

5. On Issue no.1 it was held that the suit is bad for non-joinder

of necessary parties. After the death of the original tenant all the

legal representatives had become tenants in the suit property. On

Issue no.2 it was held that a judgment Ex.DW1/1 dated 24.12.1986

had been delivered which was a suit for recovery of rent and

possession filed by the present plaintiff. This suit was dismissed on

the ground that all the legal representatives of the original tenant

of Baldeo Pershad had inherited the tenancy, they not having been

joined the suit was dismissed. This judgment Ex.DW1/1 has

admittedly attained a finality. It has not been challenged.

6. This is a second appeal. On behalf of the appellant it has

been urged that the courts below have failed to take into account

that a subsequent judgment dated 13.2.1994 had been delivered by

Mr.P.C.Ranga, Civil Judge wherein the plaintiff had sought

recovery of rent against Ved Prakash Gupta and the said suit had

been decreed in his favour. This judgment has superseded

Ex.DW1/1. It is pointed out that the courts below have failed to

consider the effect of Ex.P-1 which was a rent receipt dated

28.12.1988 executed by the defendant Ved Prakash Gupta alone

thereby impliedly establishing that Ved Prakash Gupta alone was

the tenant of the suit property. His other legal heirs had impliedly

surrendered their tenancy rights, if any. The effect of the

provisions of Section 111 (f) of the Transfer of Property Act, 1882

(hereinafter referred to as „the T.P.Act‟) has not been considered.

This has raised substantial question of law.

7. This is a second appeal. After its admission on 2.11.2006,

the following substantial question of law was formulated, which

inter alia reads as follows:

"What is the effect of implied surrender by rest of the legal heirs of the deceased Baldev Prasad in terms of Section 111 (f) of the Transfer of Property Act, 1882?"

8. The present suit was a suit for recovery of arrears of rent.

This suit was filed against Ved Prakash Gupta alone. Contention

of the plaintiff was that Ved Prakash Gupta alone is a tenant.

Thereafter on an application under Order 1 Rule 10 of the Code of

Civil Procedure (hereinafter referred to as „the Code‟). Sat Narain

Gupta, another legal representative of deceased Baldeo Pershad

was arrayed as defendant no.2. While allowing this application,

the question as to whether Ved Prakash Gupta alone is a tenant or

there are other co-tenants as well was left open.

9. Ex.DW1/1 is dated 24.12.1986. This was a judgment

rendered in a suit between the parties wherein the present

plaintiff Kishan Das Gupta filed a suit for recovery of arrears of

rent against Ved Prakash Gupta. Vide this judgment dated

24.12.1986, the court of Sh.Nand Kishore, Civil Judge had held

that all the legal representatives of deceased Baldeo Pershad had

become co-tenants in the suit property; all of them had inherited

the tenancy right in the suit property. It categorically decided this

issue that all the legal representatives of Baldeo Pershad were co-

tenants in the suit property. This judgment has since attained

finality.

10. Submission of the learned counsel for the appellant that

subsequently it had been established that Ved Prakash Gupta

alone was the tenant in the suit property as the rent receipt had

been signed by him in his individual capacity and not on behalf of

other legal representatives is without force. No doubt, this rent

receipt Ex.P1 was signed by Ved Prakash Gupta but the contention

of Ved Prakash Gupta examined as DW1 all along has been that all

the legal heirs of his deceased father had inherited this joint

tenancy; his categorical version being that he alone is not a tenant

in the suit premises; further all the legal heirs wanted to make

payment of rent to the landlord but the same was not accepted by

him; the money order sent was refused. This position has also

been admitted by PW-1 in his cross-examination. A specific

suggestion was also put to PW1 that this rent receipt Ex.P-1 was

deliberately issued by him in the name of defendant no.1 only and

that he had further agreed that after this he would issue receipt in

favour of all the other legal heirs; PW1 has also admitted that the

pay order for the arrears of rent sent by the other legal heirs had

been returned by him. In these circumstances, both the courts

below had rightly held that this issue already having been

concluded in the judgment Ex.DW1/1 and there being nothing

further to undo this, it could not be said that Ved Prakash Gutpa

alone was the tenant of the plaintiff.

11. Submission of learned counsel for the appellant that the

judgment dated 13.2.1994 of Sh.P.C.Ranga (the then Civil Judge)

has not been considered and it had modified the findings in the

judgment Ex.DW1/1 (dated 24.12.1986) is an argument without

any force. Vide judgment dated 13.2.1994 the court had only

granted arrears of rent in terms of a suit for recovery which had

been decided ex-parte against Ved Prakash Gupta. The question

as to who are the legal heirs and whether Ved Prakash Gutpa

alone was a tenant in the suit property or the other legal heirs

were also co-tenants was never gone into.

12. Section 111 (f) of the T.P.Act inter alia reads as follows:

111. Determination of lease.- A lease of immovable property determines--

(f) by implied surrender.

13. Reliance by learned counsel for the appellant on the

judgment reported in 1989 RLR 61 Sushil Kumar, Pushpa Rani vs.

Bhagwanti Devi is misplaced; this judgment had only enunciated

that if on the death of the contractual tenant is one son attorns to

the landlord and the receipts are given in his name only without

any objection by the other heirs it would be an implied surrender

of tenancy by the other co heirs. In this context, the court had held

as follows:

"It is settled principle of law that implied surrender or surrender by operation of law occurs firstly by creation of new relationship or secondly by relinquishment of possession. Implied surrender does not depend on the intention of the parties, like express surrender. It has to be implied from the conduct of the parties. The principle underlying S.111 (f) of the T.P.A. is that whatever relationship exists between two parties in respect of particular premises and new relationship arises, if two sets of relationships cannot exists as being inconsistent and incompatible that is to say, if the latter can come into effect only on termination of earlier, that would be deemed to have been terminated in order to enable the latter to operate. The essence of implied surrender is not change of possession but the doing of an act which is

inconsistent with the continuance of the lease or tenancy."

14. The judgment of the Supreme Court reported in AIR 1994

SC 774 Pushpa Rani & Ors. vs. Bhagwanti Devi and Anr. which

was an appeal against the judgment of Sushil Kumar, Pushpa Rani

(supra); it had dismissed the appeal. It was held that the findings

of "implied surrender" have to be supported by evidence on record

and has to be inferred from such evidence which was led as also

from the conduct of the parties. This question of implied

surrender can necessarily be decided only by going into the

evidence of the parties which a second appellate court cannot go

into. It is not a third fact finding court. Interference in findings of

fact are called for only if the said findings are perverse which are

clearly not so in the present case. Substantial question of law is